Monthly Archives: February 2013

Wink may be doing a follow-up story on the open container cases, which we discussed here a few weeks ago. I represented a couple of the bartenders who were cited when undercover officers walked off premises with open containers. As I explained in the earlier post, the city is trying to impose a duty on bartenders beyond their legal requirements. My clients’ charges were dropped a few days ago.

To reiterate, bartenders are not criminally responsible for customers that walk off. Walking away with an open container is an independent criminal act (under Fort Myers city ordinance). You can’t charge the clerk at Williams Sonoma if I buy a knife there and go stab somebody. Likewise, you can’t charge bartenders for other people walking off. Patrons, be aware that the city is enforcing the open container law now. Those are the people who risk citations for walking around.

Hadn’t realized the Ryan Costello trial had started until it was under way. Costello is accused of second degree murder and child neglect in the death of his child. The state’s star witness testified yesterday– Costello’s ex Whitney Simonsen, who is the mother of the deceased child. She testified that he beat her unconscious and when she woke up, the child was unconscious. The state is relying heavily on her testimony, which the Defense is attacking as she has admitted dealing drugs out of the home, and is currently serving a 10 year probation sentence, and leniency may have been motive in her testimony for the state.

Robert Clawson allowed a trucking company to dump a load of tires on his own property, which was vacant. Deputies tracked him down and charged him with a felony. The trucking employee was not charged, as he had been given permission by Mr. Clawson, and they agreed to pick up the tires. So they got nothing, and Clawson is facing a felony littering charge.

Any time I hear about a littering case, I automatically think of Alice’s Restaurant and the twenty-seven 8×10 colored, glossy photographs with circles and arrows they used to convict Arlo Guthrie. In this case, it looks like no matter how many glossy photographs were taken, they don’t have a case here. According to the WINK story, the tires were dumped on Clawson’s property. If that doesn’t sound like a crime, you’re right. The littering statute reads, in pertinent part, “…(c) In or on any private property, unless prior consent of the owner has been given and unless the dumping of such litter by such person will not cause a public nuisance or otherwise be in violation of any other state or local law, rule, or regulation.” Florida Statutes Section 403.413 (2012). Unless there is some other rule preventing it, Ms. Clawson can’t be prosecuted for littering on his own property. Duh.

Deputies Trestka and Cote have been cleared by the State Attorney’s Office for the shooting of Carlos Charles last June. According to reports, Charles escaped an attempted arrest, tied up deputy Cote, and struggled with deputy Trestka’s gun, which discharged. Apparently deputy Cote was able to free himself, and shot Charles as he struggled over the firearm with Trestka. Originally it was reported that one of the deputies was injured, but it’s unclear if he was struck by a bullet or received other injuries. The article indicates that the State Attorney’s office conducted an investigation, though it doesn’t make clear if it was their own investigation, or if they merely reviewed another agency’s investigation. LCSO generally handles most investigations themselves, and turns them over to the SAO for review. The facts as laid out in the report certainly suggest that the shooting was justified.

This story is all the more relevant now as the Tommy Kollman shooting drags on, well into its third month at this point. If that case proves to be as complicated, or more complicated than this one, it could be many months before details are released in that shooting. I urge LCSO to hand that over for outside investigation, if only to avoid the appearance of impropriety.

This article on Time.com doesn’t shed any new light on the facts, but I figured I’d share it for those who hadn’t seen it yet. The Washington Post article he links to is worth a look as well. The author, Touré, claims that he is not prejudging Mr. Zimmerman, but repeatedly refers to his vigilantism. I fear that too many articles clamoring for justice for Travyon may incite negative reactions if Mr. Zimmerman is found not guilty. Justice may mean that George Zimmerman should go free, and we should wait for the issue to be heard in court. Sadly, regardless of the verdict, those who have already made up their minds will probably not accept the outcome. I hope those who end up upset voice their displeasure in positive, lawful ways. It’s entirely possible that Zimmerman could walk, and I fear a violent response by people who have already mentally convicted him. It is a shame prosecutor Angela Corey didn’t include a grand jury in her filing process, as it seems to me that the second degree murder charge she is seeking is a reach. I urge everyone to hold back their judgment on the case until the process is complete. The immunity hearing is set for late April, and the trial is presently targeted for June.

I am going to be the guest of Big Mamma in the morning, tomorrow morning at about 9:15 on B 103.9, FM. Tune in, and call in if you have any questions you want answered on the air. I’m sharing duties tomorrow for Ask A Lawyer, but will hopefully be back to appear on some more shows in the near future.

Generally, an individual has right to remain silent, and his or her exercise of that right cannot be used against him in a court of law. However, some courts have found that in some circumstances, the government may be allowed to introduce a suspect’s silence as evidence of guilt. The Court of Criminal Appeals of Texas has held in Salinas v. Texas* that Mr. Salinas’ refusal to answer certain questions in a pre-arrest, pre-Miranda interview were not protected by the Fifth Amendment. You can read all the documents at SCOTUSblog.

The courts have previously determined that if someone is formally placed under arrest (or if they are informed of their rights), their Fifth Amendment protections would be preserved. Crimcourts has some concern that if someone’s silence can be used against them, regardless at what stage of a proceeding, then they are almost compelled to talk. That is, the suspect is given a choice to answer, or to have that silence used against them at trial. If they are to be punished for being silent, their testimony is compelled to some degree. Different courts have ruled differently on the issue, and the resulting conflict in the law was likely a prompt for the U.S. Supreme Court to accept the case to review and rule definitively on the issue.